California Prop 19 vs. Arizona's Immigration Law
I agree with this analysis, but with the exceptions discussed below it is essentially irrelevant to the California Proposition 19 situation. As noted in Gonzales v. Raich, federal statutes expressly prohibit the sale and use of marijuana as well as numerous other drugs, prescription or not, in ways not authorized under those statutes. Federal legislative attempts such as H.R. 2943 to permit the sale and use of marijuana for legitimate medicinal purposes have not been successful.
Even if the doctrine of express preemption did not apply to Proposition 19, the doctrine of implied preemption would hold for the simple reason that the stated purpose of Proposition 19 is to "regulate, control and tax cannabis"; it would regulate and control marijuana in ways quite inconsistent with the federal scheme. It would also encourage the use of marijuana and tax it. The additional tax revenues are needed by California, and were they not, the proposition would likely have less support than it presently does. According to the state legislative analyst's office, the fiscal benefits would include the following:
Result in significant savings to state and local governments, potentially up to several tens of millions of dollars annually due to reduction of individuals incarcerated, on probation or on parole.
Cells currently being used to house marijuana offenders could be used for other criminals, many of whom are now being released early because of a lack of jail space.
Major reduction in state and local costs for enforcement of marijuana-related offenses and the handling of related criminal cases in the court system, providing the opportunity for funds to be used to enforce other existing criminal laws.
The measure would provide the opportunity for significant additional revenues as the result of the taxation of sales and businesses engaged in commerce relating to marijuana.
The report notes that there might also be negative fiscal effects.
I personally support the new Arizona immigration law, disagree with the arguments asserted in the recently filed federal complaint, and think that the legalization and taxation of marijuana as contemplated by Proposition 19 would be a valuable social experiment. If the people of California want to try it, they should not face federal problems in doing so under already excessively engorged interpretations of the commerce clause and federal preemption.
One of the many advantages of having multiple states is that ideas can be tried in one of them and, if successful, adopted by other states should they wish to do so. If unsuccessful, as seems to have been the case with the Massachusetts health care law, they don't screw up other states and the federal government shouldn't do so either by mimicking them. That, in essence, it did so in enacting ObamaCare is not a persuasive argument against states conducting such experiments.
Consistency in law enforcement is a vital part of the rule of law. Should Proposition 19 pass and should the federal government not seek to have it voided as unconstitutional, the inconsistency of its treatment with that of the new Arizona immigration law would be blatant and further demonstrate that law enforcement in the United States has become a matter of whimsical political convenience. That tendency must be reversed if we are to have any realistic hope of living under a government of law rather than of transient political and ideological whimsy. A good start would be for the federal government to seek dismissal of its recent complaint against the new Arizona immigration law.